Government legal advisers have called for sweeping new rules to protect dementia sufferers (stock photo)

Thousands of people are being wrongly locked up in care homes and hospitals because of ‘failing’ mental capacity laws, Government legal advisers said yesterday.

They called for sweeping new rules to protect dementia sufferers, or others who need to be confined to a home for their own good, from mistreatment or illegal detention.

They also demanded reforms to prevent social workers from seizing people and locking them up in care homes against their wishes and those of their families.

Fresh legal protection for hundreds of thousands of vulnerable people will mean wholesale rewriting of the Mental Capacity Act, the highly controversial law brought in by Tony Blair in 2005.

The Act was supposed to give control over their own lives, to those in danger of losing the ability to make decisions for themselves.

Key sections of the Mental Capacity Act – including its central purpose of allowing people to order in advance that doctors should cease keeping them alive if they lose the capacity to speak for themselves – have now proved unworkable.

The Law Commission, the body which produced yesterday’s report, was called in by ministers after the gap in the law involving people locked up in care homes and hospitals was exposed three years ago.

‘Thousands of vulnerable people with dementia and learning disabilities are being detained in hospitals and care homes without the appropriate checks, due to a law unfit for purpose,’ the report by the Commission said.

Fresh legal protection for hundreds of thousands of vulnerable people will mean wholesale rewriting of the Mental Capacity Act - the highly controversial law brought in by Tony Blair in 2005 (stock photo)

‘Often those who lack the mental capacity to consent, like certain people with dementia or learning disabilities, need to be detained in a hospital or care home when it is in their best interests.

‘For example, a dementia patient may be kept in their care home to prevent them from wandering off, which could put them in danger. A proper authorisation process should be in place to ensure that this is done lawfully.’

The sections of the Mental Capacity Act which concern ‘deprivation of liberty safeguards’ were added to the law in 2007, and collapsed after a Supreme Court ruling in 2014.

The ruling, and a scathing report by a specially-created House of Lords committee, said more than 100,000 people whose detention should have been authorised by a court order were in fact unlawfully locked up.

Between April 2015 and March 2016 councils needed to apply to the courts for 195,840 applications to detain vulnerable people – up from 13,700 two years before.

The Commission said there should be a new scheme called Liberty Protection Safeguards, which would mean social workers would have powers to approve detention but their decisions could be tested in the courts.

The new system would mean there would be checks on whether detention was really necessary and regular checks on the treatment of people detained.

People detained under the new rules could be those living in their own homes or in supported housing as well as in care homes and hospitals, where the current detention rules apply.

The sections of the Mental Capacity Act which concern ‘deprivation of liberty safeguards’ were added to the law in 2007 and collapsed after a 2014 ruling by the Supreme Court, pictured above

The report also said the Mental Capacity Act should be reformed to give better protection to people taken from their homes on the orders of social workers.

In future, people’s wishes and those of their families should carry much greater weight.

The Commission’s report said: ‘Local authorities, NHS bodies and care providers report that they are presently unable to cope with this additional demand without significant additional resources.’

It referred to two notorious cases. In one, an autistic young man, Steven Neary, who was taken from his home by Hillingdon social workers and held for a year before being allowed home only after a powerful campaign by his father.

In another, a 91-year-old retired civil servant and former RAF gunner was taken from his home in 2013 by Essex social workers. The man, known only as RF, had not lost capacity to act for himself, the Commission report said.

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But he was ‘removed in his dressing gown without trousers or pyjama bottoms and the social worker involved threatened to call the police if he did not leave.’ The man was later forbidden to go to church or to see friends.

The demands for wholesale changes to the Mental Capacity Act follow changes to the workings of the law ordered by the senior family judge, President of the Family Division Sir James Munby, in 2015.

Under the Act, people are able to draw up living wills, or advance directives, which say doctors must allow them to die if they become incapacitated and unable to speak for themselves. This is usually done by withdrawing tubes that provide nutrition and hydration.

Sir James ruled that, contrary to the provisions of the Act, all cases in which someone is to die in such circumstances must be brought to the courts for a ruling on whether the death should be allowed.

Law Commissioner Nicolas Paines QC said: ‘It is not right that people with dementia and learning difficulties are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need. The current system needs to be scrapped and replaced right away.’

On top of the nearly 200,000 cases a year in which authorisation is needed to keep people detained in care homes or hospitals, the Law Commission said there are thousands more involving people living in supported and sheltered housing, and in ordinary homes.

Under the existing law, people should only be detained in supported housing or private homes with permission from a judge in the Court of Protection.

But the Law Commission said while 1,400 cases of people confined in supported housing or private homes go to the court, in all there are 53,000 people who are prevented from leaving such homes.